from the ridiculous dept

As we've been covering for a while now, the FAA is doing everything it can to delay nearly all commercial use of drones, despite the many possible innovations drones can lead to. Are there some legitimate safety concerns? Absolutely, but the FAA's approach of "ban everything" and then drip out a few exemptions here and there is problematic. Last year, we wrote about a key test case, involving Raphael Pirker, in which a judge declared that the FAA's ban on drones was illegal (mostly for procedural reasons). A few months ago, that got overturned... and now Pirker and the FAA have settled the matter, with Pirker agreeing to pay $1,100 [pdf] while not admitting to any wrong doing:

Respondent agrees to pay $1,100.00 (the "settlement proceeds") by January 22, 2015, to the FAA in full and final settlement of this matter.

[....]

It is understood and agreed that neither the Respondent's execution of this settlement agreement nor payment of the settlement proceeds constitutes Respondent's admission of any of the facts or regulatory violations alleged in the FAA's June 27, 2013 Order of Assessment or the Amended Order of Assessment that will issue pursuant to this settlement agreement.

From a financial perspective, I'm sure it makes sense for Pirker to settle this agreement for $1,100, rather than having to pay a lot more to go to court. But for the rest of us, this kind of sucks. It would have been good to have at least been able to test whether or not the FAA's rules are really legal. Or, at the very least, put more pressure on the FAA to stop dragging its feet and to start issuing actual rules that allow drones to be used for commercial purposes. The longer we wait, the more likely it is we cede innovation on this important area to other countries.

from the strike-them-down dept

Law professor Margot Kaminski has a fascinating post detailing how the FAA's "drone licensing" program could very much violate the First Amendment. A while back, she'd already expressed concerns about the FAA's attempt to ban the use of drones, noting that the bans blocked expression in the form of video and photography -- because, remember, taking a photograph is a form of expression. But the First Amendment question is even more stark now, thanks to the FAA's recent decision to let Hollywood use drones for commercial purposes, but no one else. As Kaminski notes, now the FAA is suddenly deciding whose expression is okay and whose isn't. That's a classic First Amendment issue.

The problem is that now the FAA appears to be playing favorites. All commercial uses of drones are banned—except for uses by those six companies that obtained an exemption (and by BP, which received an earlier exemption to use drones up in Alaska). There are 45 other applicants for an exemption under section 333, including a self-identified newsgatherer and a realtor who presumably wants to take photographs.

This potentially raises a First Amendment licensing issue. Does Congress’s treatment of these applications violate the First Amendment by putting too much discretion in the hands of government officials, allowing them to privilege one speaker over another? And if this is the case, what are the consequences for any licensing regime that happens to touch on First Amendment-protected activity?

The Supreme Court has long acknowledged that a too-discretionary licensing regime can raise serious First Amendment concerns. This is true even where a complete ban might be permissible. A brief recently filed at the NTSB on behalf of News Media Amici raised the specter of the FAA applying too-vague law in an arbitrary and discriminatory manner, in violation of the First Amendment.

Kaminski admits that this isn't a completely clear-cut case. The courts would have to determine if the licensing program is "aimed at speech" -- specifically the "law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." That may be a high bar. Kaminski isn't sure the courts would go there yet, but notes it's a possibility. And, in that possibility, it could lead to challenges towards other licensing requirements as well.

If courts paint the definition of a “nexus to expression” with too broad a brush, then licensing schemes touching self-driving cars, smartphones, or the Internet of Things may also have to meet the First Amendment’s more stringent requirements. This potentially puts the First Amendment in tension with good innovation policy. As we attempt to encourage Congress not to rush to conclusions, and encourage agencies to experiment with regulatory schemes for new technologies, discretion may be something we want to afford them, rather than restrict.

Given that we've already seen evidence of drone innovation going overseas due to regulations at home, perhaps it might not be such a bad thing to have such regulations face that higher level of scrutiny.

from the huh? dept

We remain absolutely baffled by the FAA's bizarre rules about drones. As we've noted, the FAA has said that you can use drones for fun, but if it in any way involves profit, it's not allowed. So you can use a drone to take photographs from the sky for personal use, but if you're a real estate agent trying to do a flyover of a house you're trying to sell, that's illegal. And while some people still claim that drone use should be limited so they don't interfere with airplanes, that doesn't seem to (even remotely) be the concern here, otherwise the personal use of drones would be barred too.

But it's getting even more bizarre. Now, it seems that anyone who wants to use drones in anything close to an innovative way has to first go beg the FAA for permission. And the permission is sometimes given and sometimes withheld. Compare these two stories. The University of Michigan wanted to use drones to deliver the game ball before kickoff of a football game, but the FAA nixed the request. It's not at all clear why. This was for a sporting event, and it would just be for fun. It's hard to see how the use was "commercial" other than the fact that college football is big business. Meanwhile, compare that to the fact that the FAA is apparently granting permission to Hollywood to use drones to film things:

In May, seven aerial photo and video production companies asked for regulatory exemptions (known as a 333 exemption) that would allow the film and television industry to use drones with FAA approval. Those seven companies and the Motion Picture Association of America (MPAA), were asked by the FAA to develop the guidelines and safety procedures under which they planned to operate. The FAA reviewed those procedures and is expected to approve the drone-specific rules and standards that will enable Hollywood to be exempt from existing aviation regulations.

Of course, the report from Forbes notes, this actually took four years of back and forth with the FAA to get to this point.

We've talked for a while about the concept of permissionless innovation and why it's important to keep the velocity of innovation moving forward at a rapid pace. Adding in this layer of bizarre, arbitrary and ridiculously slow regulation, and you're slowing down that pace. And while some say "does that really matter" for something as silly as flying drones, as we've noted, it's entirely possible that drones can create some amazingly powerful societal shifts. But each bit of "permission" needed along the way slows down that process and limits our ability to innovate and to adapt and adjust and learn.

from the because-that's-what-the-FAA-does dept

Hot off of doing its best to kill off any commercial use of drones, the FAA is now looking to ground some attempts at building ride sharing for amateur pilots. While plenty of people are referring to AirPooler as an "Uber for airplanes," it's not really like that. Here, the idea is that if you're a pilot flying somewhere, you can post your plans and if someone was looking to travel that route, they can hop on board and pay some of the fuel costs. The end result basically benefits everyone. The pilot has lower costs, the traveler gets a cheap flight and everyone's better off. This kind of thing happened informally all the time in the past, usually by word of mouth and bulletin boards. Airpooler is just formalizing the process.

But the FAA... doesn't like it. It claims that any offsetting of the pilots costs makes it a commercial endeavor and that violates the FAA's rules on private (non-commercial) pilots.

Private pilots as a general rule may not act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire nor, for compensation or hire, may they acts as pilot in command of an aircraft.

Now, there is an exception to that rule if the passengers are paying a pro rata share of the expenses of the flight. So this shouldn't be a problem, right? Wrong. The reasoning here is about as opaque as a foggy morning in San Francisco. The FAA repeats that there's an exception for expense sharing, but then argues that AirPooler can't rely on this exception.

As such, although § 61.113(c) contains an expense-sharing exception to the general prohibition against private pilots acting as pilot in command for compensation or hire, a private pilot may not rely on that narrow exception to avoid the compensation component of common carriage. For this reason, the FAA has required a private pilot to have a common purpose with his or her passengers and must have his or her own reason for travelling to the destination.

Likewise, although airline transport pilots and commercial pilots may as as pilot in command on an aircraft carrying passengers for compensation or hire, they may not conduct a commercial operation involving common carriage without obtaining a part 119 certificate. You have urged that the test for compensation in commercial operations is "the major enterprise for profit" test set forth in the definition of commercial operator. Specifically, you state that a pilot would not be engaged in a major enterprise for profit "if accepting only the cost reimbursements allowed under § 61.113."

Based on the fact that the FAA views expense-sharing as compensation for which an exception is necessary for private pilots, the issue of compensation is not in doubt.

Therefore, the "major enterprise for profit" test in § 1.1 is wholly inapplicable. Accordingly, we conclude that, with regard to pilots using the AirPooler website, all four elements of common carriage are present. By posting specific flights to the AirPooler website, a pilot participating in the AirPooler serve would be holding out to transport persons or property from place to place for compensation or hire. Although the pilots participating in the AirPooler website have chosen the destination, they are holding out to the public to transport passengers for compensation in the form of a reduction of the operating expenses they would have paid for the flight. This position is fully consistent with prior legal interpretations related to other nationwide initiatives involving expense-sharing flights.

Got it? I've read it over half a dozen times and I'm still confused. There's an exception that says that a passenger can pay their share of the expenses and it doesn't make it a commercial flight, but... that doesn't apply here because it's compensation, as clearly determined by the fact that there's an exception for this kind of compensation. Say what?

AirPooler apparently plans to ask the FAA "to elaborate" though the FAA's historical approach to almost any innovation seems to be "well, let's wait and not really make a decision for as long as is humanly possible." End result: significantly less innovation, not just from the likes of AirPooler, but all of the entrepreneurs who won't even try to build startups in the space.

from the watching-the-watchers-watching-themselves dept

Drones: they're a thing. They were once reserved for the military to use to remote control the fiery death of scary people most of us have never met, some of whom may occasionally, ahem, be, you know, American or whatever. Now all kinds of commercial applications are being explored for these sky-borne death-machines, like getting me my damned tacos delivered through the sky, the way God intended. Well, the FAA went all crazy-pants over the idea of businesses using UAVs, which was followed by the NTSB ruling that the FAA had no jurisdiction over commercial drones. Following an FAA appeal, the agency then decided to claim that drones were only for fun, not profit. You know, like sex.

That brings us to today, where we get to read news about the FAA investigating the use of a drone to take sky-recordings of the wedding of a US Congressman who sits on the subcommittee that oversees the FAA.

The agency's carefully worded statement doesn't mention Rep. Sean Patrick Maloney, D-N.Y., by name, but said it was looking into "a report of an unmanned aircraft operation in Cold Spring, New York, on June 21 to determine if there was any violation of federal regulations or airspace restrictions."

Maloney has acknowledged hiring a photographer to produce a video of his wedding using a camera mounted on a small drone. The wedding took place in Cold Spring on June 21. Maloney is a member of the House Transportation and Infrastructure Committee's aviation subcommittee, which oversees the FAA.

Well, if the NTSB can't get the FAA to calm the hell down about minor commercial uses of drones, darkening the memories of a congressman's wedding with a pointless investigation sure as hell might. Particularly when that congressman is directly involved in overseeing said FAA. Boys, you may just have bit off a little more than you can chew.

And this all comes off as particularly silly, given that this particular drone is the increasingly common small helicopter with a video recorder attached to it. The chances that this thing is going to interfere with airborne Boeings seem, shall we say, slim.

"On their wedding day, Sean and Randy were focused on a ceremony 22 years in the making, not their wedding photographer's camera mounted on his remote control helicopter," Stephanie Formas, spokeswoman for Maloney, said in a statement. Formas, citing the judge's ruling, said there was "no enforceable FAA rule" or regulation that applied to "a model aircraft like the helicopter used in the ceremony."

I rather expect that point to be driven home at an upcoming subcommittee meeting.

from the because-how-dare-we-allow-innovation dept

Earlier this year, we wrote about a court saying that the FAA's rules that banned the use of drones for anything commercial were overstepping the FAA's mandate, and making it clear that such drones should be considered legal. The FAA has appealed, and in an attempt to drive home its point that not a single potential commercial use of a drone is legal, the FAA has doubled down by clearly laying out what's not allowed. Lots of people are pointing out that the FAA's claims are likely to ground the high profile plans by Amazon to deliver packages by drone, but it's some of the other things that are on the prohibited list that strike me as even more ridiculous:

I can almost, kinda, barely, sorta see the rationale for saying that package delivery is not allowed, since you could see how that might interfere with other things or cause problems. And, in case you're wondering, the footnoted "6" after that "delivering packages to people for a fee" clarifies that "free shipping" on a purchased product doesn't count.

But... the rest of the items in the list all seem very troubling to me. None of those seem like cases where there's likely to be any interference with aircraft or any other kind of problem. Drone use for real estate videos is increasingly common and something that actually seems like a very good idea. Here's an example of one such video:

Can anyone explain any reason why this should be illegal? Same with the use of drones to determine if commercial crops should be watered. That sounds like a really good idea.
But it's not allowed. Because the FAA appears to basically want to control absolutely everything. This seems like a massive overreach in so many ways.

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International's lawsuit about warrantless wiretapping. If you don't recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli's false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping "terrorists" (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 -- and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have "targeted the communications" of someone that Amnesty was talking to, and that was "highly speculative" for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from "targeted" individuals, but also any communications about them.

While this may seem like a small deal, it's actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely "about" a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified "about" collections that have
resulted in the acquisition of some wholly domestic communications as a result of Section 702
surveillance and whether the government's representations in Clapper v. Amnesty International
were incomplete or misleading for failing to refer to such collections. The government acted
appropriately by not addressing the "about" collections in Clapper v. Amnesty International
because the existence of this type of collection was classified throughout the period during which
the case was briefed, argued, and decided, and because those collections did not bear upon on the
legal issues in the case. At all times, the Department and the Office of the Solicitor General have
a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely
seriously. The Department and the Office of the Solicitor General also have a duty to respect the
classified status of information, and that is also a duty we take extremely seriously. In litigation,
we must take pains to avoid discussing matters that are unnecessary to the resolution of matters
before the Court when those matters might disclose classified information or undermine national
security, while ensuring that the Court has all of the information relevant to deciding the issues
before it.

The Department's briefing and argument in Clapper v. Amnesty International fully
respected both of these duties. The Department described the surveillance authorized by Section
702 (and the provision's targeting and minimization requirements) accurately, and we made no
statements that could be reasonably understood as denying the existence of "about" collection.
Moreover, the possibility of then-classified, incidental collection of domestic communications,
while of undoubted importance and interest to the public, was not material to the legal issue
before the Supreme Court.

More importantly, they note that, contrary to the DOJ's claims, it's pretty clear that this very much mattered as a part of the Supreme Court's reasoning:

The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in this case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court's analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals -- namely their foreign contacts." This statement, like your statements, appears to foreclose the possibility of "about" colleciton.

We recognize that the inclusion of this misleading statement in the Court's analysis does
not prove that the Court would have ruled differently if it had been given a fuller set of
facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same
way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments
would have been "equally speculative" if they had referenced the "about" collection, that
should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it's a huge deal. Effectively, the DOJ and Solicitor General Verrilli -- whether on purpose or not -- misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch's decade-long
reliance on a secret body of surveillance law has given rise to a culture of
misinformation, and led senior officials to repeatedly make misleading statements to the
public, Congress and the courts about domestic surveillance. The way to end this culture
of misinformation and restore the public trust is to acknowledge and correct inaccurate
statements when they are made, and not seek to ignore or justify them.

It's unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don't seem to want to have anything to do with it.

from the the-tacocopter-may-be-grounded-yet-again dept

Late last week, we wrote about an NTSB ruling that said the FAA has no mandate over commercial drones. Apparently, the FAA will not take this attack on its perceived powers lying down, and has announced that it will file an appeal, asking the full NTSB board to review. Along with this, comes the usual hyperbole from the FAA about how if this ruling isn't stayed, it "could impact the safe operation of the national airspace system and the safety of people and property on the ground." While it may make sense for there to be some clear rules for how these things work, frankly the fact that commercial drone use has been totally grounded until now while a bunch of bureaucrats battle it out seems like a complete waste of time when useful experiments and innovation could be progressing.

from the let's-get-this-going... dept

Almost exactly two years ago, we wrote about the tacocopter, a sort of proof of concept idea for using drones to deliver products to people's homes. Yes, Amazon got some attention last year for claiming to be working on something similar, but the Tacocopter (and Lobstercopter on the east coast) idea was the first I'd heard of anyone seriously thinking about commercial-use drones. However, the key point of our Tacocopter story was that they were illegal:

Current U.S. FAA regulations prevent ... using UAVs [Unmanned Aerial Vehicles, like drones] for commercial purposes at the moment.

Well, that's no longer the case apparently. National Transportation Safety Board (NTSB) administrative law judge Patrick Geraghty has unleashed the tacocopters of the world by issuing a ruling that the FAA has no mandate to regulate commercial drones. The case involved the first time that the FAA had actually tried to fine someone, a guy named Raphael Pirker, $10,000 for trying to film a commercial with a drone at the University of Virginia.

The issue, basically, is that the FAA has historically exempted model airplanes from its rules, and the NTSB finds it impossible to square that with its attempt to now claim that drones are under its purview. As Geraghty notes, accepting that leads to absurd arguments about the FAA's mandate over all flying objects:

Complainant has, historically, in their policy notices, modified the term "aircraft" by prefixing the word "model", to distinguish the device/contrivance being considered. By affixing the word "model" to "aircraft" the reasonable inference is that Complainant FAA intended to distinguish and exclude model aircraft from either or both of the aforesaid definitions of "aircraft".

To accept Complainant's interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the "operator" to the regulatory provisions of FAA Part 91, Section 91.13(a)....

..... The reasonable inference is not that FAA has overlooked the requirements, but, rather that FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions.

The judge notes that while the FAA had some internal memorandum about these issues, it did not put forth a full rule, and thus it is not an actual policy. As a result, the ruling finds that the current definition of aircraft is not applicable here and thus the FAA has no real mandate over this kind of drone.

This does not preclude the FAA from trying to go through a full rule-making process to try to gain a mandate over commercial drone use, but that will involve a big political fight. It's way easier to block something like that from becoming official than overturning it if it was already deemed the law.

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.